from the urls-we-dig-up dept

There are many, many studies on creativity and possible ways to improve the creative output of a group. Monetary incentives are often presented as a way to get people to produce more ideas, but some studies show that money isn't actually a great motivator. Obviously, there are a lot of factors that can influence how creative people are, but it would be nice to isolate a few and see if we can eliminate some practices that are downright detrimental to creativity. It would be great if we found out what really could inspire people, but maybe we shouldn't put too much pressure on the researchers... because that might dampen their productivity.

from the writing-is-9/10ths-of-the-law dept

Last May, a teenager was punished with a lengthy suspension after teachers discovered her folder which contained stories with references to marijuana use. Her father is now speaking out and appealing the school’s decision.

Tom Grayhorse, father of Krystal Grayhorse, told Ozarks First that he was called by Buffalo High School’s assistant principal after staff found Krystal’s folder containing the stories at the school and were “alarmed by the contents of the notebook.”

“She wrote about making out with a boy- well, you know, she’s a teenager- and also about having some pot then eating it and swallowing it at the school,” said Tom Grayhorse.

So, a student's personal notebook -- not one belonging to the school or any particular class -- was left behind and read by a member of school administration, who then "freaked out" and brought it to the attention of school officials.

He went to the school for a meeting but was told he couldn't see the notebook because it's considered evidence, and that his daughter would be suspended for ten days.

Yes, the school went full cop on him, claiming the evidence was so secret it couldn't even be seen by the legal guardian of the minor involved. The ten-day suspension has now been extended until January 2015, thanks to its "zero tolerance" drug policies, even though no actual drugs were involved. District Superintendent Robin Ritchie offered this deferral to policy by way of "explanation."

"If they give a ten-day suspension it comes to me as the superintendent and then it is my decision to look back at it and see if an extended suspension is in order...our drug and alcohol policies permit for several different consequences that can be given out. And most of the time it's 1 to 180 days that students can be suspended," Ritchie said.

Apparently, in this case, the decision was to use the full 180 days, stretching from the original suspension in May to early 2015. Obviously, this will have a negative impact on the student's hope of graduating on time, but the district has been less than helpful in ensuring the drugless drug violator will be able to stay on schedule.

"I asked them about alternate schooling for people that had been suspended and they said they didn't have it," says Grayhorse.

Then there's this detail, which may have some crying "#notallsuperintendents!" -- according to both the student's father and investigating officials, the student claimed to have had drugs in her possession, if only temporarily.

Grayhorse claims his daughter didn't have the drugs, even though she admitted to a school officer that she did.

"She'd confess to almost anything, within reason, just to get [the questioning] over with. Somehow she allegedly had some [marijuana]. And she ate it and swallowed it and that took care of it and it was gone."

Well, why not? And why didn't the school exercise some of the other options it offers students with drug issues, rather than pull the trigger on a lengthy suspension?

[Superintendent] Ritchie said the hypothetical discovery of a first-person story involving the use of a controlled substance, even at school, would "not necessarily" trigger a suspension. She added that school counselors have been trained to direct families to resources in the community if there's any hint of alcohol or drug use in a student.

The superintendent, while refusing to address specifics, says that the student's written "drug possession" wouldn't necessarily trigger a suspension and that the family could have been approached first about the theoretical drug problem. But the school didn't do any of this and Ritchie's noncommittal, non-specific statements back this up. She claims it all runs through her. So, the extended suspension, as well as the avoidance of less punitive actions, were OKed by her.

Devil's advocate says that if the student truly had drugs in her possession, this would all have been uncovered much more quickly and never would have become another quickly-circulating example of stupid school administration behavior. But withholding the evidence from the parent, as well as the lack of other verification like a drug test, points to a zero tolerance hammer converting another student into a more compliant nail.

from the here-we-go-again dept

More than five years ago we first wrote about Kutiman, an Israeli musician who created an album of incredible new music simply by editing together a bunch of unrelated YouTube clips. The end result is... astounding. I still listen to it frequently. In some ways this is a "mashup" or a "remix" but it's unlike most that you've heard. Many remixes take a known recorded song and change it around or take a few different recorded songs and mix them all together. Those can be amazing too. I've found that by artists like Girl Talk or D.VELOPED often create music that I, personally, find to be more enjoyable than the originals. But Kutiman is different, and takes it to a new level by taking totally random bits of music -- often amateurs messing around -- on YouTube, and converting them into astoundingly complex and beautiful songs.

We've highlighted some of the examples in the past, but here are two examples from that first album, of taking a random video that most wouldn't consider to be anything all that special and turning into a part of an amazing project. We'll start with taking a simple kid playing a scale on a trumpet which becomes integral to an entire (great) funk song. Here's the trumpet bit:

And yet, some might argue that this is all nothing more than "piracy" or "infringement." Others may argue that this is not "real" music because it's just "remixing." I have a hard time taking any of those arguments seriously. Here is someone using those pieces as instruments to create a beautiful new work. It takes nothing away from the old work.

Unfortunately, however, there's already been some (now resolved) controversy with this new work. One of the cello players, Deryn Cullen, featured in this work apparently complained to Kutiman. It's this video in which she plays Bach's Prelude from Cello Suite no 2 in d minor. She apparently was initially upset and felt that Kutiman should have first asked permission to use her performance. After they talked it over, and she understood the nature of the project (and, perhaps, because she saw how much positive attention it was getting), she agreed that she was happy to be a part of it. It's good that they were able to have a discussion on this and come to a mutual appreciation -- but it's yet another unfortunate situation that one comes to when we live in a world of "permission culture," where some people feel that you should always get permission first. And to sort of prove how silly this is, one need only ask whether or not Cullen received permission from the estate of Johann Sebastian Bach before performing his piece.

I'm happy it worked out in the end, but imagine if every time someone wanted to create new music they had to get permission from everyone up and down the chain whose work played a part? What's happening here, with Kutiman, is so blatantly obviously brilliantly creative, new and original -- and yet, under our broken copyright laws it might be deemed "infringing" by some, "derivative" by others, and illegal by many. Isn't that a problem? Isn't the idea behind copyright law to encourage new and beautiful works like these? Adding the friction and tollbooth of "permission culture" to the process would make this kind of artwork impossible, and that would be a loss to everyone.

from the thanks,-guys dept

Recall that trademark law is chiefly about protecting consumers from confusion via the limitation of words, images and logos for use in specific forms of commerce -- specifically used in ways that might confuse the consumer about the origin of the product. In other words, consumers should be able to reasonably discern whether a brand is represented by the inclusion of that brands identifiable name and image in when seen. Simple right?

The city is now pulling the campaign because of trademark infringement concerns. The ads, which launched earlier this month, received attention for their humorous use of some very recognizable product packaging. The campaign slogan was, “Littering says a lot about you.” The ads featured discarded candy boxes, plastic bottles and other packaging arranged to spell the unflattering message that littering conveys.

The combinations included a bag of Lay’s potato chips and a Krazy Glue package arranged to spell “Lazy”; Reese’s Pieces and a bottle of Gatorade put together to spell “Pig”; Alka-Seltzer and Goldfish crackers saying “Selfish”; and a pack of Sweet'N Low and Lifesavers put together to say “Low Life.”

Some examples:

Clever, right? Apparently, several of the companies whose brands were used called to complain, simultaneously assuring the city that they fully supported the campaign to end littering, but that they were miffed over the use of their brands. The chief concern appears to be the potential for damage to the brands in question. The theory, I guess, being that the use of parts of recognizable brand names would result in consumers associating those brands with litter... or something.

Regardless, the City of Toronto caved to the pressure, even though they were likely completely in the clear. We reached out to some experts and couldn't find any who found this reasonable. One Canadian trademark lawyer told us he couldn't see how there was a legitimate trademark claim, while law professor Eric Goldman had this to say:

"I'm not sure about Canadian trademark law, but I can discuss it from the US perspective. I believe the ads are probably OK under trademark law because I doubt the trademark owners could establish the requisite consumer confusion. Looking at the ad in total, there's almost no risk that the consumers will think the ads are for anyone other than the anti-litter agencies. (There is a greater risk that the eye-catching use of third party logos would constitute "initial interest confusion," but that doctrine almost never succeeds in court any more). The trademark owners' strongest argument is that consumers will think the trademark owners authorized or sponsored the ads. That's an empirical question that would cost each side over $100k to answer via consumer surveys, plus hundreds of thousands more for legal fees. The large costs associated with adjudicating that question creates the opportunity for plaintiff bullying and defendant stonewalling."

Which is exactly what happened. It would take a lot of strain to convince one's self that the ads were about anything other than the city promoting a cleaner environment. Now that campaign has been lost to the trademark lawyers of brands that claim to support the effort.

from the way-to-go,-guys dept

I've never hidden my perhaps strange fascination with video game music. Everything from soundtracks to fan-made remixes, it's something that I love. But, for some reason, video game music for many people isn't so much a lark as a point of major industry contention. Recently we discussed how one composer's union turned into his enemy when he was simply working on a video game. The latest example, however, details how apparently professional musicians and/or their representatives got a game developer to shut down a fan-music contest out of what seems to be pure spite.

Some background is in order. Several years ago, developer Red Thread Games produced two insanely good point-and-click adventure games, The Longest Journey and Dreamfall: The Longest Journey. For the third installment, the team decided to turn to Kickstarter for funding, asking for $850k to produce the game and instead getting over one and a half million dollars in funding from fans. It's everything you want out of a Kickstarter story, with a great team organizing their rabid fan-base to both make money and produce another awesome game. And, while Red Thread Games already had a music composer on staff to create the larger soundtrack composition, the team wanted to give a nod to their dedicated fans and set up a contest by which fans could compose background/ambient music for small sections of the game, with the winners of the contest having their compositions included in the eventual release.

Supposedly professionals within the music arena felt as if the contest was designed to exploit fans and get a hold of royalty-free music for the game, a similar argument that originally caused The Fine Young Capitalists campaign to get shutdown.An update on the official Kickstarter page for Dreamfall: Chapters The Longest Journey details that the contest had been cancelled due to the conflict surrounding the event. As noted on the update, the decision is final and the contest won't be returning.

“We do understand the different points of view and the reasons behind some of the backlash, even though we also feel our intentions were perhaps misrepresented and misunderstood. This was not an attempt on our part to commission free music for the game — we already have a fantastic score, a professional composer and some diegetic music — but rather a response to the community asking for a chance to get their music into the game. We felt this competition could benefit both the game and our fans.”

And so concludes the attempt by Red Thread Games to connect with their fans in possibly the most meaningful way: inclusion within the project. A fan contest for small amounts of music was done in by industry musicians with no skin in the game. The backlash in the comments on the project, as well as on Twitter and other social media, made the developers out to be greedy robber barons looking to avoid paying a professional musician, which is an interesting theory considering the game already has a professional composer on staff. This was all about letting the fans have some fun, but the industry shouted it down until the project was shut down.

The sad reality here is that someone who could have been thoroughly talented, and just needed an opportunity to get their music out there, had a potential avenue to a career in music cut short. This isn't to say that anyone who submitted music to the contest could have become the next Jesper Kyd or Marty O'Donnell, but killing these kind of opportunities to bridge the connection between developers and gamers only hurts game culture. Could you imagine if the same thing extended to the games arena and game jam contests came under the same fire? It's like killing off the potentiality of future artists before they even have a chance to shine.

That last bit is of extreme importance, because it's the correct rebuttal to anyone involved in blasting this contest who also says they were doing so to protect the music industry. No, you weren't. You were just being dicks. As a result, a great game is a little less fun and none of you are any more hired for the project today than you were yesterday. Bang up job all around.

from the think-fan-fiction-is-just-about-teenage-girls? dept

Tell people that fan fiction
is an important form of political speech that deserves protection,
and they'll roll their eyes. The stereotypical fanfic writer is a
teenage girl who writes misspelled stories about vampire love—is
that kind of work really worth anything? Maybe there used to be
folks like Shakespeare, Dante and Virgil who wrote stories about
characters someone else invented, and yes, those stories changed the
world, but let's face it: Vampire love. There's just no living that
down.

Which makes it all the more
mind-bending to learn that a man we respect, James Madison, Father of
the Constitution and fourth President of the United States, wrote a
story about a character he didn't create. Yes, the same man who
wrote the Bill of Rights also wrote a fanfic. Vampires.

John Bull, the character
Madison appropriated for his story, was created in 1712 by John
Arbuthnot. Though forgotten today, Arbuthnot's satirical allegory
about the War of the Spanish Succession, The
Law is a Bottomless Pit, was very popular in its time. John Bull
represented England, while other characters represented the rest of
the nations involved in the war.

There was no fanfiction.net
in Arbuthnot's time, but that didn't stop his readers from spinning
off their own stories and comics which also used John Bull as a
characterization of England. Over the course of a century, John Bull
transcended his origins and became Britain's version of Uncle Sam.
To the British he was a hero; to the American colonists, a villain.

Enter James Madison. The
retired president was concerned over the growing rift between the
North and the South. To give voice to his opinions on how the matter
could be resolved peacefully, he wrote a short allegorical story,
Jonathan Bull
and Mary Bull, wherein a character named "Old Bull"
represents England, and his descendants "Jonathan Bull" and
"Mary Bull" represent the North and South respectively.

From a modern perspective
the story is nothing much to read, but it does raise a rather
intriguing question. Why fanfic? What made Madison decide to use
existing characters to make his point rather than inventing his own
characters like John Arbuthnot did for his own political allegory?
And isn't using other people's characters without permission
copyright infringement?

The easiest way to tackle
these questions is to tell you an allegorical story. There once was
a comic artist, "Jim M.," who wanted to comment upon the
important issue of CIA torture. To make his point, he drew a three
panel comic strip. In the first panel, Captain America is taking
down a fanatical Nazi commander who tortured prisoners of war for the
good of the Fatherland. "You will be tried for your crimes,"
he promises. In the second panel, Jim M. draws Captain America
standing next to President Obama, who is casually observing that
although the CIA did "torture some folks," the lapse can be
excused because the torturers were patriots who loved their country.
In the third panel we see Captain America's shadowed face as he walks
away from a burning American flag.

Suppose Jim M. had created
a new character, "Bob the freedom-loving American G.I." to
use in place of the copyright and trademark-protected Captain
America? It wouldn't have had half the impact, would it? Captain
America's strong connection to American patiotrism and historic stand
against the oppressive Nazi regime makes him an ideal character for
Jim M.'s purposes. As for Bob the American G.I., the audience knows
nothing about him. Even if Jim M. did try to provide Bob with a
heroic backstory, readers would have to wade through 200 pages of
unrelated material before they even got to the part about the CIA
torture. Without the use of Captain America, Jim M. wouldn't be able
to get his point across.

For Jim M., effective
political speech requires the
use of a popular icon, not an unknown character. Unfortunately, Jim
M. has now opened himself up to a potential copyright lawsuit. If he
chooses to defend his fair use rights, it will cost thousands of
dollars in legal fees. If he loses, the damages could be even more
grave.

James Madison didn't have
to worry about the legality of his political speech because a) John
Arbuthnot was Scottish and the U.S. didn't recognize international
copyright laws at the time; b) John Bull had already entered the
public domain; c) the creation of derivative works (such as
fanfiction) had not yet been criminalized. It's that last point that
concerns Jim M., because it means that he can no longer be sure that
the law will protect his freedom of speech. It may, or it may not;
either way, it will cost him thousands of dollars in court to find
out. Compare that to the situation in Madison's day: If Madison had
wanted to write an allegory where Captain America tries to make peace
between the North and South, he could have done so without any fear
of repercussions. Before derivative works became illegal, creators
had the freedom to make use of the most appropriate character for
their commentary without facing any consequences.

So what about Janice, who
writes a five page long fanfic in which Edward and Bella visit the
9/11 site and wonder about the direction America is heading between
passionate vampire kisses? Being born in 1901, Edward lived through
WWII, and it turns out that he has some surprisingly insightful
thoughts about the state of America today. The story concludes with
Edward, who is telepathic, overhearing the hateful thoughts of his
fellow visitors toward a man in a turban standing nearby. But Edward
reads the man's thoughts, and learns that he is praying for the
families of the victims.

Could Janice provide the
same insightful opinions without using copyright-and
trademark-protected Edward as her mouthpiece? Yes, but not as
easily. It would be a tough challenge to develop Edward and Bella as
rounded characters, then show Edward's unique powers and lifespan,
all without shifting the emphasis away from the issues she wants to
explore. Instead of writing a story about the impact of 9/11, Janice
would end up writing a story about why her character has supernatural
abilities.

Someone skeptical is
saying, "Yeah, but do fanfic writers actually write stories like
that?" Yes, absolutely! Fan creators make use of their
favorite characters to propound their opinions on issues from racial
equality to stopping
SOPA. In the introductions to such stories, you will often hear
the writer explain, "I thought such-and-such a character would
be perfect for dealing with issue X because..." These writers
have an innate understanding that the use of popular icons allows for
powerful forms of expression that would be difficult to achieve by
other means. Yet these same writers would have a very hard time
proving that their creations are fair use before a judge.

Not that it matters,
because such cases almost never go to court. Fair use is too fickle
to be relied upon as a defense, and the expense of proving a point is
too costly for the average person to bear. What we are left with is
a situation where rights holders can basically censor political speech
at will. Just imagine if John Arbuthnot had been able to order
Madison to take down his story because he disagreed with Madison's
political views. The President was deeply in debt at the end of his
life, and like most of us, he could hardly afford an expensive loss
in court.

Of course, some would argue
that the ability to censor speech is a good thing. After all,
suppose that an anti-Semitic fan wrote a story set in WWII where
Edward joins the Hitler Youth? If it weren't for the laws against
derivative works, the argument goes, Stephenie Meyer wouldn't have
the right to take down the fan writer's objectionable ideas.

But it would be a mistake
to assume that such censorship powers will always be used for good.
Take for example the popular book, "The Education of Little
Tree," written by Asa Earl Carter, a now-deceased member of the
Klu Klux Klan. Suppose that a fanfic writer decided to have Carter's
main character, Little Tree, befriend an African American boy as a
way to express support for the idea that all men are brothers? The
same power that gives Meyer the right to take down anti-Semitic
speech also grants racists like Carter the ability to discriminate
against the minorities they despise.

Most of us support freedom
of speech, but for copyright holders, the right to censor views they
disagree with has been all but enshrined as a legal right. What
would happen, I wonder, if Jim M.'s Captain America cartoon went
viral? Would his work be praised by Marvel, or would they send him a
cease and desist letter? Would he crumple quietly, or fight it out
in court for years?

"Yes," the
critics say, "but we could avoid this whole problem if people
just wouldn't write fanfics in the first place. Do your social
commentary without using other people's IP!" You hear that,
James Madison? You'll have to find another way to stop the Civil
War. We have lawyers and they don't like how you're expressing your
"creativity."

Madison cautiously
approved of copyright, but I doubt that he suspected it would be
used to chill free speech like his story 200 years later. The
President clearly knew that derivative works can provide a compelling
way to make a point, and as the author of the First Amendment, I'd
like to think that he believed that fanfiction should be a protected
form of expression. It's a shame that such a valuable means of
public discourse has been almost criminalized today.

I would sing you "Happy Birthday". But technically I think the song is still under copyright — I don't want to have to pay the royalty.

Of course, whether or not Happy Birthday is truly under copyright is at the heart of a big legal fight, with significant evidence suggesting that the song is clearly in the public domain.

However, Kroes is making a larger point about the way we view copyright today, and how that does not fit with how the world works. As such, she suggests rethinking how a copyright system should work:

I start from principles. What should a sound EU copyright system do?

First, it needs to promote creativity and innovation. To encourage and stimulate innovative new works, new opportunities, new channels, new models. To enable the research that leads to new discoveries.

This is a great start, and it highlights a key point of copyright law: it is supposed to encourage those kinds of things. The problem is that very little research has actually been done to determine if it actually does that. Instead, it's often taken on the basis of faith that it must do that, without considering whether it really does, or if there are other limiting downsides to how it's currently done. Some people claim that I am somehow "against" copyright. Nothing could be further from the truth. I am happy to support a copyright system that has been shown to actually promote creativity and innovation. I've just seen very little evidence to suggest our current system really does that.

Unfortunately, Kroes' next point seems a bit off to me, though I understand why she's making it:

Second, it must remunerate and reward creators. That's not just about fairness. We expect creators to invest their time and talent. Of course reward, recognition, remuneration are essential: without them, the creative tap would fast stop flowing. I have always believed that.

But the current copyright system does not do it well. Not nearly well enough. Many creators scrimp by on a pittance, unable to find their full audience, unable to share or sell their works as widely or creatively as they want. Limitations and obstructions do nothing for creativity.

A few points on this. First, it seems to come from the incorrect assumption that copyright is a sort of "welfare" system for artists. That's not its purpose, nor how it was designed. Copyright itself has never "remunerated or rewarded creators." You can create all you want, and if no one likes it, all the copyrights in the world won't get you paid. It's the market that decides if you'll be rewarded for your creativity, and sometimes the market is cruel. It's possible that copyright can, in some cases, help create such a market, but to argue that copyright's job, alone, is to help get artists paid is misleading, as it leaves out the basic fact that that's never been the job of copyright. It may be an offshoot of the first point -- creating the incentives for creativity and innovation -- but to elevate the "help people get paid" point, dangerously positions copyright as more of a welfare system for artists, rather than as a tool for incentives in the market.

At the same time, the argument that "the creative tap would fast stop flowing" also does not seem supported by the data. At a time when artists keep complaining that it's harder and harder to get paid, we've seen an astounding explosion in new content being created. Part of the issue is, in fact, that the money being spent today is spread much more widely -- thus you have a lot of artists making that said "pittance," but it does not appear to have resulted in any decrease in creativity.

That said, I'm all for figuring out more ways for there to be more creativity, and if we can figure out ways to get more artists paid, that's a great idea. It's why I'm excited about new innovative services that helps drive that process forward. Platforms like Kickstarter, Patreon, YouTube, Bandcamp and more have created entirely new ways for artists to make money from their artwork. But, there's something important to note in all of that: almost none of those really are reliant on "copyright," and pretty much all of them would function in nearly the identical fashion without copyright.

Again, this is not to say that copyright is not important. It's to point out that it's faulty and dangerous to assume that copyright alone is the tool by which to get artists paid. It leads to poor policy choices that often ignore more interesting (and potentially lucrative) methods being developed in the market.

Third – it should enable a digital single market. Removing the barriers that get between artists and their audience, that prevent innovation, that shatter economies of scale. The EU's leaders are signed up to a full, vibrant digital single market. So is President-designate Juncker. Now they need to act on their ambitions – copyright is a major, essential part.

I'll leave this aside for the moment because it's a messy and complex issue in Europe that isn't quite as simple as some would like it to be. I agree that taking down barriers would help, but there is a lot of nuance at play in this particular issue.

And last: perhaps most importantly, the legal framework needs to take account of the needs of society. Users' interest and expectations matter alongside creators' rights. Rules cannot be impractical, uncertain, or unreasonable for ordinary users.

Indeed, this is the most important, but I think it also goes hand in hand with the first item on the list. If you take into account the needs of society, and make sure that copyright really does focus on incentives for creativity and innovation, then everything else in the system works out nicely.

But still, Kroes is absolutely right to note that today's copyright laws don't function well under these current principles, and because of that copyright itself is at risk of becoming irrelevant:

Every day citizens here in the Netherlands and across the EU break the law just to do something commonplace. And who can blame them when those laws are so ill-adapted.

Every day, startups, small businesses, scientists abandon innovative ideas because the legal fees are too great.

Every day, people bypass the copyright system using alternatives like open source: something which can lead to huge creativity, innovation, and richness.

Copyright risks becoming an irrelevance.

And Kroes further points out how it's not just that copyright is out of touch, but it may actively be harming the principles she states above:

The Internet gives enormous opportunities for artists and consumers. More direct access to a wider audience, and a wider range of content. New ways to share, spread, sell. New ways to reward and recognise. New ways for audiences to appreciate – getting what they want, when they want it. A good copyright system would help us achieve that. Today's does not.

Some examples.

When uncertainty prevents people remixing or creating their own content, how does that boost creativity?

When teachers are afraid to share teaching materials online, how does that help our society?

When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?

When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?

When lovers of old films have to physically fly to a different country to see them, even if they're no longer in commercial circulation, how does that support European culture?

When museums have to take out insurance specifically against the risk of copyright lawsuits, because it's too complex and costly to figure out – how does that help promote European heritage?

When you can't sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?

When European scientists have to abandon text or data mining because they can't afford the legal fees – how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.

I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.

As she then notes, it's basically impossible to explain copyright to the average "man on the street." Many now see copyright as "a tool for obstruction, limitation and control" rather than "openness, innovation and creativity." The speech is well worth reading, and has some very good points. I just fear that the focus on that second point -- of pretending that copyright is a tool for guaranteeing payments in a kind of welfare system, is part of what leads to the current problems of the system, and takes it away from those other key goals of benefiting the public. If the system is designed properly to benefit the public, it should automatically create incentives that help artists, whose work is in demand, get paid.

from the and-that-day-disney's-heart-grew-one-size-bigger dept

Disney is a name that is often associated with copyright maximalism for pretty good reasons. Despite the fact that many of its early successes depended heavily on either direct infringement or making use of the public domain, the company was a very aggressive enforcer of its own copyrights. And, of course, it was also a primary lobbyist for expanding copyright protections, and extending copyright term every time Mickey Mouse approached the public domain.

However, in the past few years, it's seemed as though Disney has been a bit quieter than in the past about copyright issues, allowing some other companies to take the lead on that. And, in some cases, it seems to even be recognizing (*gasp*) that some infringement can actually be a good thing. Andrew Leonard, over at Salon, has the story of how Disney has finally joined the 21st century in realizing that having fans create derivative works around the movie Frozen, has actually been useful and free promotion for the original (and massively successful) movie.

Disney’s expertise in nurturing, co-opting and, most of all, not cracking down on the many ways fans have embraced “Frozen” online is a template for how to thrive in a digital, copy-promiscuous, consumer-empowered environment. Disney, long one of the fiercest and most powerful defenders of strict intellectual property control, has learned how to let copyright go.

The article includes a bunch of examples of people who have built up huge audiences (and even careers) themselves, almost entirely built off of Disney's works -- without Disney getting involved at all. Disney isn't asking for money and it's not shutting them down. It's just letting them do their thing, even if they're making money from doing so. Why? Because it appears that even Disney is recognizing that even when these "infringers" are making money, Disney itself likely makes even more money from it:

Disney did not respond to my queries as to where they draw the line or how they are engaging with non-authorized use of Disney characters. But there’s anecdotal evidence that the company has realized that the same people who are buying soundtracks and merchandise and DVDs are the same people who are making and sharing YouTube videos. Although Disney once viewed YouTube with alarm, the company now seems to realize that fan-created content — even in cases where that content is generating revenue that is not captured by Disney — is cross-promotional marketing that money can’t buy.

For all the times we see copyright defenders insist that anyone "making money" from someone else's work is "obviously" a problem, it's nice to see Disney understand how non-zero-sum markets work, and the fact that just because someone is making some money, it doesn't automatically mean that money is coming out of Disney's bank account.

So... within a very short time it appears we've seen both the Supreme Court officially admit that infringement can be beneficial, and Disney implicitly admit the same thing. It feels like hell may be freezing over.

from the via-audible-magic dept

The legacy copyright industry has been pushing for years to make automatic fingerprinting and blocking a requirement under the law. In fact, many lawsuits from both the record labels and movie studios have argued that automated fingerprinting is already a requirement under the law -- though, those legal arguments have been consistently rejected. For example, in the record labels lawsuit against Vimeo for allowing "lipdub" videos, the labels have been claiming that Vimeo's failure to offer an automated system for filtering out copyright-covered works amounted to "willful blindness." While the court rejected that argument wholeheartedly, noting that the law makes "clear that service providers are under no affirmative duty to seek out infringement," it appears Vimeo has decided to do so anyway.

On Wednesday, Vimeo announced its new Copyright Match tool. Like basically every non-Content ID filter out there, this one relies on technology from Audible Magic, which doesn't necessarily have the best reputation. Vimeo seems to bend over backwards to insist that it will allow fair use... but it appears they're still taking a "takedown first and review later" approach to it. If your work is blocked, you can claim fair use, and then wait for Vimeo to determine if they agree with you or not -- even if the copyright holder never complained about the work.

In other words, it's another step towards permission culture, rather than allowing the sort of permissionless creativity and innovation that is so important today.

from the do-keep-this-up dept

I'll admit that, other than knowing his name and that he was a Hollywood actor in some big budget films, I didn't know very much at all about Shia LaBeouf. However, apparently he's been facing some "controversy" over a few different examples of plagiarism in his work, with the "biggest" being plagiarizing a cartoon by Daniel Clowes called Justin M. Damiano with the short film HowardCantour.com. Others also pointed out that, in a comic book created by LaBeouf, he apparently plagiarized a bunch of others, including Kurt Vonnegut and Charles Bukowski (if you're going to plagiarize, plagiarize from the best, apparently).

While plagiarism scandals pop up every so often, there are a variety of standard responses -- usually involving some sort of apology and then someone laying low for a while before reappearing (just ask Joe Biden). LaBeouf initially appeared to be following the same script... tweeting out apologies, before people started realizing that the apologies themselves were "plagiarized." That includes using Tiger Woods' apology after his scandal: "I have let my family down, and I regret those transgressions with all of my heart." Also, former Defense Secretary Robert McNamara's famous apology concerning his role in the Vietnam War: "I was wrong, terribly wrong. I owe it to future generations to explain why."

From there, he finally admitted on New Year's eve that he was really mocking everyone -- which should have been obvious from the beginning, by saying:

You have my apologies for offending you for thinking I was being serious instead of accurately realizing I was mocking you.

He then decided to give an email interview with BleedingCool, much of which itself appears to be plagiarized as well. BleedingCool initially claimed that it believed the statements were "original" to LaBeouf, but then has gone back and noted repeated lines in the interview that are plagiarized from others. I'm guessing that they're missing quite a few others.

But what comes out of it is what is likely a highly plagiarized defense of plagiarism, as well as a condemnation of the state of copyright law today, and how it limits forms of expression. Take this tidbit, for example:

The problem begins with the legal fact that authorship is inextricably
bound up in the idea of ownership and the idea of language as
Intellectual property. Language and ideas flow freely between people
Despite the law. It’s not plagiarism in the digital age – it’s repurposing.
Copyright law has to give up on its obsession with “the copy”
The law should not regulate “copy’s” or “reproductions” on there own.
It should instead regulate uses – like public distributions of copyrighted work -
That connect directly to the economic incentive copyright law was intended to foster.
The author was the person who had been authorized by the state to print there work.
They were the ones to be held accountable for the ideas.
THE FIRST LAWS ON AUTHORSHIP WERE USED TO CENSOR & PERSECUTE
THE WRITERS WHO DARED PUBLISH RADICAL IDEAS.
Simple – should creation have to check with a lawyer?

At least some of that is from Larry Lessig. Almost certain other parts are from others. But, in a way he's proving the point. He is creating something new, unique and interesting, even as he's plagiarizing others, even to the point of talking about outdated copyright laws.